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Tuesday, October 5, 2010

Was Tyler Clementi Gay? Hate Crime Needs a Gay Victim

HOrdinarily the sexual behavior of an adult is an entirely private matter. Unfortunately, the drive of some New Jersey prosecutors to find a way to charge Rutgers freshman Dharan Ravi and Molly Wei with a hate crime stemming from the suicide of fellow freshman (and Ravi's roommate) Tyler Clementi (as to which any causal connection between the misuse of a webcam and the suicide is highly speculative at this point and nowhere near "provable beyond a reasonable doubt") requires a discussion of Clementi's sexuality. The reason for this is that it is a necessary element of a hate crime to have a victim who is in a protected class -- such as being gay -- and hence the speculative is unavoidable.

Therefore, to charge Dharan Ravi and Molly Wei with a hate crime, you must prove that Tyler Clementi was gay.

Well, there is one way to try to avoid the speculation. Clementi's family can step forward and ask the prosecutors and investigators in the Middlesex County Prosecutor's Office to stop looking for a hate crime. I would not expect that request, if made, to be honored. There is too much gain to be made by exploiting this tragedy for political purposes.

Now to the main legal question: Was Tyler Clementi gay?

The evidence indicating he was gay is the alleged video that was made and allegedly distributed of Clementi in some sort of encounter with another man. However, I caution you on this point: Does one same-sex encounter -- or five -- mean that one is gay? There is no way to be conclusive on this point, at least not scientifically. Other theories, involving terms and amorphous definitions of the terms "gay," "bisexual" or even the adjective "curious" to describe someone who is being just that -- I guess, being "curious" as to what a gay encounter is -- but who is presumably heterosexual, are all over the map and seem to have nothing in common except a bunch of uncertain judgments and opinions, all lacking a "bright line" or "hard" definition. I even foresee multiple expert witnesses on the issue of sexuality offering differing opinions in court about this seminal issue.

But what if he wasn't gay?

Here are some points which I find disturbing -- without even addressing anything sexual in nature. They raise some important, and hard to answer, questions.

Does a reportedly shy 18-year-old suddenly go away to college (oh, 50 miles away, the distance between Ridgewood and New Brunswick, NJ), and within weeks he starts "hooking up" with someone else -- male or female? And in his own room, which he shares with a roommate? Are these the proactive acts of a shy freshman? Or are they the acts of a shy freshman who was being manipulated -- played -- by someone who may have been considerably older, more confident, even devious? This leads to the next question: Where is the "other man" whose image was purportedly captured on video?

Could Tyler Clementi have been seduced, or manipulated, even perhaps against his will? (In fairness, evidence weighing against this is the reported Ravi text message about a roommate -- presumably Clementi -- requesting to have the room to himself for a few hours on one of the nights at issue. But remember -- that is nowhere near "conclusive proof" or "proof beyond a reasonable doubt.")

The shame of all this is that, considering how this tragedy supposedly arose out of an invasion of privacy, the rush to judgment and the drive to find a hate crime -- probably to further a variety of political and professional agendas and satisfy the prosecutorial ambitions of at least some state lawyers -- will do more to destroy any semblance of privacy Tyler Clementi and his family had. But this controversy is not about Tyler Clementi.

Eric Dixon is a New York small business lawyer who is admitted to practice in both New York and New Jersey. In addition to representing small businesses, entrepreneurs and freelancers, he represents clients on civil rights and constitutional rights matters, election law and voting rights issues, litigation, negotiations, government investigations and corporate investigations. Mr. Dixon engages in litigation stress management and lawsuit counseling to help clients cope with and overcome the emotional burdens of being sued or investigated. Mr. Dixon is available for consultation or comment at 917-696-2442 and via e-mail at edixon@NYBusinessCounsel.com.

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